Rule of Law Reform in Post-Conflict Countries

Transcription

1 Paper No. 37 / October 2006 Rule of Law Reform in Post-Conflict Countries Operational Initiatives and Lessons Learnt Kirsti Samuels

2 Summary Findings This paper aims to provide a tour d horizon of common operational initiatives and policy approaches adopted by agencies and institutions involved in the area of rule of law reform in fragile or post-conflict countries, and identify key lessons highlighted in the policy literature. There is a growing focus on rule of law reform in aid and development packages. However, as discussed in this paper, the numerous rule of law assistance programs implemented in postconflict or fragile countries have had few lasting results on the somewhat intangible social-end goals associated with rule of law reform: (i) a government bound by law (ii) equality before the law (iii) law and order (iv) predictable and efficient rulings, and (v) human rights. Despite two decades of experimenting, still little is known about how to bring about these difficult and interdependent social goods. In the non-conflict development context, rule of law reform appears to have been moderately more successful. However, even in those cases, there is little solid analysis in the literature evaluating why those strategies were relatively effective, or how they could be adapted to postconflict settings. It is clear that the difficulties faced are severely heightened in the post-conflict context, where capacity and the rule of law starting point are very low and the country is often facing urgent law and order and dispute resolution problems. The paper reviews some of the key lessons to have emerged from the last two decades of rule of law experience, typically undertaken in fragile or post-conflict countries (and more generally in developing countries) by a multiplicity of uncoordinated actors and projects. There is a striking lack of systematic results-based evaluations of the programs, especially independent rigorous cross country evaluations, or comprehensive case studies of all the programs in a country. The rule of law expertise that exists is not centralized or institutionalized, and resides in individuals who have often learnt through trial and error. The field lacks a common foundation or basic agreement on the goals of rule of law reform, on how different aspects should be sequenced to avoid them working against each other, and fundamentally what sorts of strategies are effective. The paper highlights 11 important lessons: lack of coherent strategy and expertise; insufficient knowledge of how to bring about change; a general trend to focus on form over function; emphasis on the formal legal system over informal and traditional systems; short-term reforms in contrast to longer term strategies; wholesale vs. incremental and context-determined change; the need for local change agents; how to engender local ownership; rushed and compromised constitution making; poorly designed training and legal education programs; and the need to sequence and prioritize change. The paper also includes detailed annexes on (i) key international actors involved in rule of law reform (ii) comprehensive examples of rule of law interventions in conflict-affected and developing countries, organized by actor, as well as (iii) a detailed reference list organized by major themes. In this complex situation, it would be difficult, and probably unhelpful, to devise a rule of law strategy for the Bank without first undertaking comprehensive and well structured evaluations of how the different rule of law reform projects have interacted and played out in a range of postconflict countries, as well as in some of the apparently more successful non-conflict countries. Given the state of development of this field, a literature review of the type undertaken in this paper can only serve as a starting point. However, a carefully designed, comparative field project based on systematic results-based case study evaluations, and drawing on the expertise of those that have worked in this field for years, could contribute substantially to the evolution of the field of rule of law reform. It would help give direction, centralize, institutionalize, and render accessible some of the lessons that should be guiding future programming in this area. These case analyses will be part of the second phase of this work at the Bank with the aim of contributing to the rule of law programming in post-conflict countries.

3 SOCIAL DEVELOPMENT PAPERS Conflict Prevention and Reconstruction Paper No. 37/ October 2006 Rule of Law Reform in Post-Conflict Countries Operational Initiatives and Lessons Learnt Kirsti Samuels

4 This Working Papers Series disseminates the findings of work in progress to encourage discussion and exchange of ideas on conflict and development issues. Papers in this series are not formal publications of the World Bank. The papers carry the names of the authors and should be cited accordingly. The series is edited by the Conflict Prevention and Reconstruction (CPR) Unit in the Social Development Department of the Sustainable Development Network of the World Bank. This paper has not undergone the review accorded to official World Bank publications. The findings, interpretations and conclusions herein are those of the author(s) and do not necessarily reflect the views of the International Bank for Reconstruction and Development/ World Bank and its affiliated organizations, or its Executive Directors, or the governments they represent. To request copies of the paper or for more information on the series, please contact the CPR Unit. Papers are also available on the CPR Unit s website: Web: (see Publications in the navigation menu) cpr@worldbank.org Conflict Prevention & Reconstruction Social Development Department The World Bank 1818 H Street, NW Washington, DC Fax: Printed on Recycled Paper

5 Table of Contents Foreword...iii I. Introduction What is Meant by Rule of Law Reform? The Rationales for Rule of Law Reform The Actors in Rule of Law Reform The Evolution of International Policy Frameworks...5 II. Rule of Law in Post-Conflict Countries Human Security and Law and Order Property and Commercial Disputes, and Economic Regulation Human Rights and Transitional Justice Predictable and Effective Government Bound by Law Access to Justice and Equality before the Law...12 III. Evaluations...13 IV. Lessons Learnt Lack of Coherent Strategy and Expertise Insufficient Knowledge of How to Bring About Change Form over Function Formal over Informal and Traditional Mechanisms Tangible Short Term Reforms over Long Term Strategies Wholesale over Incremental and Context Determined Change The Need for Local Agents of Change The Paradox of Local Ownership Rushed and Compromised Constitution-Making Poorly Designed Training and Legal Education Programs Sequencing and Prioritizing...23 V. Conclusion...23 Annex 1: Actors Involved in Rule of Law Reform...25 Annex 2: Examples of Interventions in Conflict and Developing Countries by Actor...28 References...39 Figures Figure 1: Rule of Law in Russia under Yelstin. 4 Figure 2: Rule of Law in Russia under Putin 4 Tables Table 1: Typical Programmatic Interventions in the Development Phase 9 Table 2: Typical Programmatic Interventions, Property and Commercial Disputes and Economic Regulation Table 3: Typical Programmatic Interventions, Human Rights and Transitional Justice Table 4: Typical Programmatic Interventions, Predictable and Effective Government Bound by Law.12 Table 5: Typical Programmatic Interventions, Access to Justice and Equality before the Law.13

6 ii Box Box 1: Rule of Law Reform in East Timor..16

7 iii Foreword The World Bank s involvement in conflict-affected countries is at the very origin of its mission. Indeed, the first loans of the International Bank for Reconstruction and Development were made for the reconstruction of Western Europe after World War II. The Bank s mandate has evolved since then. Poverty reduction has become the World Bank s overarching mission. Since the early 1990s, rule of law assistance including justice sector reform has become a substantive element of the World Bank s response to poverty challenges. The World Bank s approach to conflict has also evolved. The institution s intervention in post-conflict Bosnia and Herzegovina has laid the framework for its current approach to conflict and development. Operational Policy (OP/BP) 2.30 states that assistance to countries that are dealing with conflict is at the core of the World Bank s mission, with a focus that has shifted from rebuilding infrastructure to promoting economic and social stability. This report on Rule of Law Reform in Post-Conflict Countries examines the common ground between the conflict and the rule of law fields of development assistance. Because the World Bank operates in an environment with numerous multilateral and bilateral donors, the study does not limit its scope to the assistance provided by the World Bank alone. Indeed, useful lessons can be learned about rule of law assistance in post-conflict countries by reviewing the valuable experience of institutions having differing mandates and approaches. The rule of law challenges in post-conflict situations are very complex, and there is little solid analysis providing guidance in this area. Some of the complexity is caused by the very existence of the many different actors involved in the field. A detailed appendix to the report provides an overview of the work that some of these actors are carrying out to strengthen the rule of law in conflictaffected countries. This study evaluates what is known about the effectiveness of programs to strengthen justice in postconflict countries, identifies some of the gaps in knowledge and analysis that need to be addressed in order to guide future work, and gathers some of the lessons learned from experience. These lessons are threefold. Some of them pertain to development assistance in general. This is the case, for example, when it comes to our understanding of how to bring about change, the role of local ownership, and the necessity for donor coordination. Other lessons relate to rule of law assistance more specifically, such as the perceived emphasis of form instead of function of legal institutions. The main focus of this study, however, is the lessons learned from rule of law assistance in the particular setting of post-conflict countries. Though the paper reports that rule of law assistance programs in conflict-affected countries show, to date, limited impact on the ultimate social goals associated with the rule of law, it also argues that systematic case analysis represents a natural next step toward guiding future programming in this area and contributing to the evolution of the field of rule of law reform in post-conflict countries. It was precisely with the view to carrying out case analysis that the World Bank commissioned this study, which we hope provides a solid basis for that next step. Christina Biebesheimer Counsel Justice Reform Practice Group Legal Vice-Presidency

8 RULE OF LAW REFORM IN POST-CONFLICT COUNTRIES: OPERATIONAL INITIATIVES AND LESSONS LEARNT I. INTRODUCTION There is a growing focus on rule of law reform in aid and development packages, 1 and most UN agencies, Breton Woods Institutions, Regional Banks and bilateral development agencies have rule of law reform programs. This literature review is the first step in an effort by the World Bank to develop a strategy on justice reform activities in fragile and post-conflict states. It aims to provide a tour d horizon of common operational initiatives and policy approaches adopted by agencies and institutions involved in the area of rule of law reform in fragile or post-conflict countries, and synthesize the key challenges and pitfalls facing rule of law reform that are highlighted in the policy literature. To allow for a more coherent understanding of the breadth and complexity of rule of law reform, and how different reform aspects interact, the paper does not restrict itself to matters within the mandate of the Bank. 1. What is Meant by Rule of Law Reform? Rule of law reform is a term that covers a range of initiatives and projects, means different things to different organizations, and has ranged in content and focus over time. The rule of law reform programming that has evolved over the last 20 years should be distinguished from the Law and Development phase that preceded it in the 1960s and early 1970s, although there are clearly overlaps. The Law and Development effort was largely a US endeavor, funded primarily by USAID and the Ford Foundation, and relying on the expertise of US academics at the major law schools. The programming aimed to reform the judicial systems and legal systems of many countries throughout the developing world to assist their economic development. The ambitious projects relied on the belief that legal changes would engender social changes, and that the US legal system was the best model to support economic development. The movement was declared to be a failure in the mid-seventies by its key supporters. Criticism of the programming included that it was not based on a theory of how law impacted on development, that there was no local ownership of the projects, that the focus was entirely on the formal legal system (ignoring the traditional or informal mechanisms), and that it relied on the ethnocentric view that the American legal system could be successfully transplanted into the developing world. 2 The current rule of law reform programming is a more global phenomenon, supported by a far greater number of agencies and countries, and is rationalized on the basis of economic development, democracy, and peace. Its approach to the issues of reform and rebuilding of a legal system is on the whole more nuanced. It may, nonetheless, need to relearn some of the lessons learnt during the Law and Development approach. 1 Figures vary, and it can be difficult to quantify rule of law assistance, but a recent report claims that the US alone provided $970 million during , of which $349 million was for Latin America and the Caribbean (U.S. General Accounting Office 1999). The list of the World Bank programs, and their nominal cost, can be found in Initiatives in Legal and Judicial Reform 2004, Legal Vice Presidency, See

9 2 Since the terminology has no internationally accepted definition, and in practice is used in a fluid and uncertain fashion, it is important to break down the term rule of law into its component parts, as it often masks very different programs and emphases. Some actors have focused on corruption, some on human rights, some on creating an economic framework, others on judicial training, and still others on reforming the police all under the rubric of rule of law reform. 3 Two distinctions should be drawn when defining rule of law reform: the first is between end-goals, programmatic strategies and institutional goals; the second is a distinction between the different endgoals. First, the end goals sought by rule of law reform are complex and intangible, and must be distinguished from programmatic strategies that are hoped will create these social goods. The recent Secretary General s Report on rule of law formulates the rule of law in terms of ambitious end goals: A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. (Secretary General 2004, para. 6) In contrast, others have tended to conflate the social goals with the institutional goals in a laundry list approach to rule of law reform. 4 This lack of specificity in defining the goals undermines rigorous analysis of the achievements of the programmatic strategies since the institutional end-goals may be achieved but this may not bring about the social goods that are the real justification for the interventions (Kleinfeld Benton 2005). Second, the end-goals or social goods incorporated within the term rule of law fall into different categories. Kleinfeld Belton s definition, which breaks the concept down into five elements, is a helpful starting point: The rule of law is not a single, unified good but is composed of five separate, socially desirable goods, or ends: (1) a government bound by law (2) equality before the law (3) law and order (4) predictable and efficient rulings, and (5) human rights. (Kleinfeld Belton 2005, p. 27) Although there are other ways of conceptualizing the categories of end-goals, this approach focuses on the outcome sought to be achieved, and allows strategic analysis of how the different elements interact, whether they are reinforcing and must advance at the same time, or whether some ought to be prioritized, and whether, in fact, some will involve conflicting reforms (Kleinfeld Belton 2005). Finally, rule of law must be distinguished from rule by law. In many Asian countries the focus is on predictable and enforceable law, but the government does not consider itself subject to the law. This 3 For example, the Office of the United Nations High Commissioner for Human Rights (OHCHR) tools on rule of law in post-conflict countries actually restricts its analysis to criminal law issues, although its title simply refers to rule of law (Office of the United Nations High Commissioner for Human Rights 2006a). Different entities highlight different elements seemingly without acknowledging that they are ignoring other elements. In the Secretary General s definition the emphasis is on law and order and human rights, whereas the World Bank has emphasised commercial and economic rights. 4 For example, the European Union in its 1998 Commission Communications to the Council and the European Parliament, lists a combination of end goals and institutional goals as implied by rule of law. The OECD-DAC also seems to lean in that direction, identifying a list of institutional goals or expectations.

10 3 approach is best termed rule by law, rather than rule of law, as the latter implies that the sovereign or government is also bound by law (Carothers 2006). Rule by law requires the use of legal rules in order to assure the uniformity and regularity of an existing legal system. Thus, even an authoritarian legal system, or one which does not protect human rights, will qualify as ruling by law if it uses and enforces legal rules routinely through the use of officials and some form of a judiciary, as long as it achieves a relative degree of certainty and predictability The Rationales for Rule of Law Reform There are at least four rationales that have been put forward by different agencies as justifications for rule of law reform in fragile, post-conflict or underdeveloped states (this has varied partly on the basis of mandate or vogue). (1) Economic development: the argument that rule of law is essential to economic development focuses on the need for predictable and enforceable laws for contract enforcement and foreign investment. (2) Democratization: the protection of human rights and mechanisms holding government accountable are essential in liberal democracy, and inherent in rule of law. (3) Poverty reduction: rule of law reform is considered essential to poverty reduction as the poor suffer more from crime, the impact of crime on their livelihood is greater, and they are less able to access the justice systems (DFID 2000, p. 1). (4) Peacebuilding: transitional justice, creation of courts to resolve conflict, and writing constitutions and legislation to remove sources of conflict and injustice are increasingly considered essential aspects of peacebuilding in fragile and post-conflict states (Secretary General 2004). As is the case for most complex state-building goals, it is difficult to prove the requisite causality to establish any of these justifications with certainty. The propositions themselves are complex, multifaceted, and general, and while there is little rigorous evidence to support them, there is at the same time little evidence to disprove them. Moreover, the individual goods in themselves, such as economic empowerment, the protection of human rights, or professional and independent judges are generally recognized to have inherent value of their own. At the same time, absolute statements about the need for rule of law before economic development, democracy or peace cannot be supported. In reality, all countries fall short in their practice of the rule of law ideal. In all democratic systems, elements of the rule of law are violated consider for instance the politicization of the appointment of the judiciary in the US, or the ongoing debates over the role of racism in the application of the criminal law in many countries (Carothers 2003). Thus, although for example the protection of civil and political rights and a government subject to law are logically fundamental aspects of liberal democracy, in fact democracy usually, co-exists with substantial shortcomings in the rule of law (Carothers 2003, p. 7). The one area which has raised sustained controversy has been that of the relationship between rule of law and economic development (Hewko 2002, p. 2). China is sometimes cited as evidence that the economic development rationale for rule of law is flawed (Upham 2002, p. 10). However, China s example, while interesting, does not challenge the basic premise that predictable and enforceable commercial and contractual matters are essential for foreign investment and economic development. While China certainly does not abide by a Western conception of rule of law in relation to human rights or a government subject to law, it does nonetheless subscribe to rule by law, and has in its own way ensured predictability and enforceability of commercial dealings (Ortis 2001). 5 See the useful discussion by Ortis (2001).

11 4 The rule of law programs that incorporate specific economic ideology (such as privatization) within their strategy are justifiably more controversial. The expansion of the concept of rule of law to cover such strategies is questionable. A further point is that reforms targeting different end goals are not necessarily reinforcing. Although these end goals co-exist more or less in developed countries, the reforms needed to achieve, for instance, a high level of law and order may undermine human rights or the accountability of government. Kleinfeld Belton s diagrammatic break-down of the five end goals of rule of law is a useful model to ensure that each aspect of rule of law is considered independently, as well as in its relationship to each other. For instance, her diagrams of rule of law in Russia under Presidents Yeltsin and Putin highlight that law and order is not necessarily related to the degree the government is bound by law or the other core elements of rule of law (Kleinfeld Benton 2005). Figure 1: Rule of Law in Russia under Yeltsin Figure 2: Rule of Law in Russia under Putin 3. The Actors in Rule of Law Reform 6 The area of rule of law reform has been characterized by a multiplicity of actors and largely uncoordinated projects. The main actors can be divided into those that primarily fund and those that primarily implement although there is some cross-over. In the first category, the principal actors include UNDP, USAID, DFID, the regional banks and the World Bank, UNDPKO and the Soros Foundation. Key implementers include the Asia Foundation, the American Bar Association, and the OSCE through its Office for Democratic Institutions and Human Rights and the High Commissioner on National Minorities. Nonetheless, these large entities represent only a portion of the rule of law programming that takes place in a country. There are also many small programs targeting different elements or functions of the justice and government systems, run by small entities, legal specialists, bar associations, judges associations, law schools, former police officers, human rights organizations, humanitarian organizations, and a range of 6 See Appendix for a tabulated, more complete list of actors.

12 5 other more or less qualified private firms. The funding entities generally sub-contract within this medley of actors. 4. The Evolution of International Policy Frameworks Rule of law reform programming has progressed in waves. The first rule of law programming was largely driven by USAID and took place in Latin America both in post-conflict (e.g., El Salvador and Guatemala) and post-dictatorial contexts. Its focus was largely on human rights monitoring, judicial training, legislative reform and physical infrastructure projects. Programming then extended to the rebuilding of the post-communist states (some of which were emerging from conflict such as Yugoslavia, the FRY, Croatia, Bosnia-Herzegovina or Albania). In these countries the economic aspects were a major target, with extensive redrafting of commercial, regulatory and banking legislation to meet capitalist market principles, creation of legislative human rights protections, as well as judicial training and emphasis on improved legal education. USAID again was a major actor, as was the American Bar Association, and the Open Society as well as European regional and bilateral involvement. Rule of law reform programs in Africa and Asia have followed more slowly, and in more of an ad hoc fashion, ranging from anticorruption and good governance drives, to legislative reform, judicial training and legal education reform, or support to parliaments. At the same time, since 2000 there has been increasing focus on the role of rule of law reform in UN peacebuilding. In 1993, the General Assembly first recognized that the rule of law is an essential factor in the protection of human rights. In 2000, the Brahimi report first identified the need for a shift in the use of police and rule of law elements in peace operations. In 2004, the Secretary General published the first report on rule of law and transitional justice in conflict and post-conflict societies, which responded to and formalized the growing conviction that rule of law reform is fundamental to peacebuilding: Our experience in the past decade has demonstrated clearly that the consolidation of peace in the immediate post-conflict period, as well as the maintenance of peace in the long term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice. At the same time, the heightened vulnerability of minorities, women, children, prisoners and detainees, displaced persons, refugees and others, which is evident in all conflict and post-conflict situations, brings an element of urgency to the imperative of restoration of the rule of law. (Secretary General 2004, p. 3) A rule of law component has been placed within the UN DPKO civilian police division and DPKO has incorporated rule of law programming into most of its recent peacebuilding missions, including Kosovo, East Timor, Haiti, Liberia, Afghanistan, Cote d Ivoire, Burundi, the DRC, and Sudan. 7 The focus of this programming has been on law and order, especially the police and penal systems, and some judicial capacity building. At the same time, the World Bank has increasingly highlighted that effective, efficient and fair legal and judicial systems are essential to national economic and social development (Wolfensohn 1999). Since the late 1990s, the World Bank has developed projects in most regions of the world covering aspects of 7 For example, the 2004 United Nations Stabilization Mission in Haiti provides that the Mission will monitor and report on the human rights situation, re-establish the prison system and investigate violations of human rights and humanitarian law, help rebuild, reform and restructure the Haitian National Police, including vetting and certifying that its personnel have not committed grave human rights violations, develop a strategy for reform and institutional strengthening of the judiciary and assist with the restoration and maintenance of the rule of law, public safety and public order. The 2003 Liberia mission was even mandated to develop a strategy to consolidate government institutions including a national legal framework and judicial and penal institutions.

13 6 economic and commercial legislative reform, judicial training, court modernization and land administration. 8 The EU has put emphasis on law and order in its crisis management capability. In June 2004 it initiated the first EU rule of law crisis management operation in Georgia, followed by missions in Africa and the Middle East. The OSCE also coordinated rule of law reform activities in the Former Yugoslavia, Georgia, Azerbaijan, Armenia, Moldova and Chechnya and has worked on rule of law issues in Albania and Bosnia Herzegovina. The OSCE Office for Democratic Institutions and Human Rights has been active throughout the OSCE area in the fields of election observation, democratic development, human rights, tolerance and non-discrimination, and rule of law. The High Commissioner on National Minorities has also been active in this field, particularly with respect to reforms aiming to contribute to the resolution of ethnic tensions. Nonetheless, the field remains somewhat ad hoc, with little centralized or institutionalized strategy or expertise despite a surge in interest and actors entering the field. For instance, there remains a lack of inhouse expertise in the main funding agencies. The Criminal Law and Judicial Advisory Unit was only established in DPKO in February 2003 within the Civilian Police Division of DPKO, and consists of one post. UNDP/BCPR has few dedicated posts at Headquarters, and both outsource the projects to legal consultants, 9 and in essence the same is true of the Banks. USAID probably has probably developed the most expertise from its long history of rule of law programming. Some developments may help overcome these difficulties. The Joint Needs Assessment and Poverty Reduction Strategy Paper (PRSP) processes can play a useful role in shaping an integrated strategy for a country, providing some direction and focus to the collection of projects. The recent drive to create the Peace Building Commission and Peace Building Support Office in the UN, as recommended by The United Nations High Level Panel on Threats, Challenges and Change (2004), opens opportunities for further coordination, although it is not clear to what extent this will come about, given the wrangling over the responsibilities and capabilities of this new commission. II. RULE OF LAW IN POST-CONFLICT COUNTRIES Although there is growing focus on rule of law in post-conflict countries, there is little guidance on how to approach such rule of law reform, nor how the strategy adopted ought to differ from that in developing countries. Rule of law in conflict and post-conflict states is most likely to fall into the latter two categories of rule of law breakdown suggested by Mani (2002), namely: corrupt and dysfunctional, and devastated and non-functional. The third category she identifies: illegitimate but functional, is common in the developing context but rare in the post-conflict context. Post-conflict states will present many of the features of fragile and underdeveloped states but to a more extreme degree, and with particularly acute peace and security, law and order, and transitional justice concerns. Key features of transitions from civil conflict include a devastated infrastructure, destroyed institutions, a lack of professional and bureaucratic capacity, an inflammatory and violent political culture, and a traumatized and highly divided society. In many cases the degree of capacity, physical 8 According to the report, Initiatives in Legal and Judicial Reform 2004, there have been some 600 Bank-financed projects related to legal and judicial reform across regions (e.g., Mongolia, Guatemala, Togo, Zambia, Cambodia), ranging from credit reform, land administration, judicial training, court modernization programs, to review of economic and commercial legislation. As of 2004 there were 16 active projects in four regions, and seven more projects coming up. Seven projects had been completed. 9 See UN Peacebuilding Capacity Inventory, forthcoming 2006.

14 7 infrastructure, and public trust in the government and its institutions will be dramatically lower than in developing countries. Other common problems include a lack of political will, judicial independence, technical capacity, materials and finances, and government respect for human rights. In addition, in the post conflict context, a shadow or criminalized economy is likely to be entrenched and there is likely to be widespread access to small arms reflected in a high level of violence in the society. Given the lack of law and order, accountability and trust it is difficult to entrench major reform, and ultimately the reforms that are sustainable may be somewhat limited. Rule of law entry points range from peace negotiations/agreements, constitution-making processes, Post- Conflict Needs Assessments (PCNA), UN Security Council resolutions, Poverty Reduction Strategy Papers, bilateral developments programs and individual NGO action. The context for the rule of law reform program will include the nature of the international/un presence in the country. The primary distinction is between trusteeship-like situations (UNTAC/Cambodia, UNMIK/Kosovo, UNTAET/ East Timor) where the UN transitional administration had primary responsibility for all of the elements of rule of law, and lighter footprint models (such as Afghanistan or Liberia) where a transitional government or newly elected government has prime responsibility, and the international agencies play the advisory and funding role that is more typical of a development situation. The discussion below explores the types of rule of law reform projects that have taken place in postconflict countries across the different agencies and players. It does not represent a menu of recommended projects, but could be used as a starting point in thinking through interrelated needs. The review is broken down into five different categories representing different social goods: Human security and basic law and order; A system to resolve property and commercial disputes and the provision of basic economic regulation; Human rights and transitional justice; Predictable and effective government bound by law; and Access to justice and equality before the law. 1. Human Security and Law and Order 10 The breakdown of law and order is one of the defining aspects of any conflict or post-conflict state. During the conflict years extreme armed violence dominates the political environment and criminal violence and theft become the norm as legal rules are not enforced. The post-conflict context is likely to involve a breakdown of the formal justice system, physical destruction of the criminal justice infrastructure, a weak or destroyed legal community, and the general perception that judges who have not been killed are weak or biased. 11 The police force is also likely to be prone to corruption or non-existent, and the prison system inadequate. There is also generally a lack of essential tools for legal or judicial work, including paper, legal texts and computers although this is a common problem in many low income developing countries (Widner 2001). The armed forces may have played a negative role in the administration of justice during the conflict by intimidating judges, arresting civilians, or taking over the role of the police. Even once the conflict is 10 The mandate of the Bank in this area would be shaped by the recent legal opinion on support for criminal justice reform. 11 This problem was experienced in both Rwanda and Sierra Leone, making efforts to construct legal and judicial systems exceptionally difficult (Mburu 2001).

15 8 officially over, large numbers of armed militias or army units with weak command and control structures, little training, and often little or no pay provide a continuing source of violence and disorder. Moreover, the population tends to be highly traumatized, and have little trust in government or a legal system which allows for a culture of impunity and lack of accountability for violent actions. Two Phases. There are two phases to consider in relation to post-conflict human security and law and order: the first is the immediate need to regain some degree of law and order in the state this crisis management phase often involves peacekeeping troops, UN police, and sometimes foreign judges. The development phase, which is practically concurrent with the crisis phase, aims to set up a more long term sustainable environment of law and order in the state, and represents an even more difficult challenge. The crisis management phase has been largely dealt with by DPKO in peacebuilding missions (e.g. East Timor, Kosovo, Haiti, and Liberia). Typical issues include: Questions over the UN or other foreign military s role in providing law and order, and what they are to do with persons that they arrest (USIP 2004); Strategies for disarming, demobilizing, and reintegrating fighters (DDR); The difficulty of bringing in foreign police who do not speak the local language and are not trained in the local law; Questions of what law to apply, both because of questions of perceived legitimacy of laws associated with previous regimes, and because in many cases it is difficult to find copies of laws since most have been destroyed; Questions as to where persons who are arrested are to be held, tried, and incarcerated; and The question of judicial capacity a key difficulty. In both East Timor and Kosovo the question of whether to rely on local or international judicial capacity arose. Reliance on the local capacity as a first resort led to difficulties from the breakdown of the legal system in East Timor, to public hostility in Kosovo when local judges had to be replaced by international judges as it became clear that they were unable to act in an unbiased fashion when dealing with cross-ethnic matters. 12 The development phase, which must be planned from the start and must be integrated into the crisis management phase, involves the need to re-establish a sustainable law and order environment in the country. It requires a more long term strategy to address criminal behavior and assist in conflict resolution. Typically this has been conceived as requiring the restoration of a formal criminal justice system, which will include the police structures, the judicial system and prosecutors, and the penal system. In addition, it may include DDR, reforming the armed forces and amending criminal codes. 13 It may also involve strategies to target the public perceptions of the armed forces and of the criminal justice system, as the effectiveness of a criminal legal system largely turns on the degree to which is it perceived as legitimate and fair by the population. Typical Programmatic Interventions in the Development Phase. Depending on the circumstances on the ground, one or more of the following activities have been undertaken in post-conflict countries. It is useful to keep in mind that the institutional starting point in these cases is generally substantially lower than in non-conflict countries, as the police and judicial structures have often been completely destroyed. 12 See for example Chesterman (2004, 2005) and Strohmeyer (2001). 13 For example, the UNDP ROLS program in Somalia covers 5 components: Judiciary; Law Enforcement; Human Rights and Gender; Disarmament, Demobilization and Reintegration and Small Arms and Light Weapons Control; Mine Action.

16 9 Table 1: Typical Programmatic Interventions in the Development Phase Police Judicial capacity Prisons Prosecutor capacity building Legal education Ministries of Justice, Interior and Defense Criminal law reform Traditional and customary law Legal education in Criminal law Peacekeeping measures Police vetting and recruiting; Police reforming, restructuring, training and strengthening; Training in community policing; Monitoring local police services to ensure observance of the principles of democratic policing; Assistance in developing public information strategies; Assistance with basic administrative and financial management arrangements for the local police services, determination of fair and equitable police salary scale; and Provision of personnel for positions where local capacity is lacking. Recruiting judges and magistrates; Training of judges or magistrates in judicial responsibilities, ethics, human rights, local law relevant to their jurisdiction, legal procedures; and Training in lawyering techniques, e.g., how to run a courtroom, move cases along, keep track of files, write opinions and manage heavy caseloads efficiently. Upgrading prison infrastructure and corrections operational capacity; Assisting in the preparation of laws on prisons, prison policies and regulations; Assisting in the preparation and adoption of human rights policies and guidelines for prison officials and in the implementation of relevant human rights instruments; Selecting, vetting and training local corrections personnel; Human rights training for police and penal system officials, provision of personnel for positions where local capacity is lacking; Monitoring issues such as bribery, corruption, manipulation and abuse of power; Developing reporting procedures to address abuses; and Inspection or oversight of the correctional system. Recruitment and training of prosecutors; and Capacity building of prosecutor s office. Infrastructure and capacity building for law schools, professional legal training organizations, judicial training centers and bar associations; and Provision of personnel for positions where local capacity is lacking. Infrastructure support and capacity training of ministry staff, provision of personnel for positions where local capacity is lacking. Advice on codification or bringing criminal law provisions in line with IHR Standards. Vetting for compliance with IHR standards, possible codification. Infrastructure and capacity building for law schools, professional legal training organizations, judicial training centers and bar associations; and Providing personnel for positions where local capacity is lacking. Deployment of UN Police or international judges. 2. Property and Commercial Disputes, and Economic Regulation The economy is generally devastated in the post-conflict environment. Crops will not have been planted or harvested and most legitimate business and commerce will have stopped operating because of the

17 10 insecurity and violence. A shadow and criminalized economy is likely to have emerged. One of the essential steps in stabilizing the peace is to encourage a return to legitimate economic activity. There is an urgent need for a mechanism to resolve property (especially land, livestock and commercial) disputes. Land tenure is a key point of friction, in particular land ownership claims, demands for restitution by former owners and compensation demands. The provision of land to ex-combatants, mechanisms to achieve quick administrative solutions, and the drafting of land legislation, before these disputes escalate to violence is fundamental to long term peace. Mechanisms to ensure predictable enforcement of contracts are also essential (even if these are oral or informal) to allow commerce and economic activity to develop. In time, once basic economic stability is achieved, the questions turn to more advanced economic regulatory frameworks, including matters such as a banking and investment legal framework, tax legislation, capital regulation, foreign investment and customs. Table 2: Typical Programmatic Interventions, Property and Commercial Disputes and Economic Regulation Economic and commercial conflict resolution and law reform Property law reform Legal education in Economic and Commercial Law Economic regulatory frameworks and legislative reform Formalization and strengthening of commercial conflict resolution mechanisms (e.g., public reputation systems, alternative dispute resolution, commercial courts). Assisting in setting up courts or tribunals to deal with recognition of Property (housing, commercial enterprises, livestock and personal effects); and Seeking a fair and unambiguous legal framework to deal with land tenure conflicts. Infrastructure and capacity building for law schools, professional legal training organizations, judicial training centers and bar associations; and Providing personnel for positions where local capacity is lacking. Advice on reform/drafting of laws dealing with commercial and contract matters, banking law, monetary policy, customs duties, taxation, foreign exchange controls, capital markets, and foreign direct investment in infrastructure sectors; and Training members of the bar and the judiciary in business reorganization and insolvency law. 3. Human Rights and Transitional Justice 14 Issues of transitional justice are necessarily a key focus of the post-conflict context, both to confront and address the culture of violence and impunity and massive human rights violations that took place during the conflict, and to begin a healing process within the community through truth and reconciliation, accountability and reparations. The transitional justice phase is of a fixed term (generally a few years) and hence does not of itself require long-term capacity. Nonetheless, when planning transitional justice institutions, the question might be asked whether these can also be used to work towards larger efforts to build the capacity of a country's justice system post-conflict (e.g., the ICTR in Rwanda did little to promote Rwanda's justice system, but the Special Court for Sierra Leone may have a greater impact). Protection of human rights requires changes which are sustainable in the longer term. Human rights problems can emerge from massive movements of refugees and internally displaced persons (IDPs), the increasing conscription of child soldiers and the sexual exploitation and trafficking of women and children. In the post-conflict context, the protection of women and girls is often of prime importance as violence and rape increases during conflict, since many men and boys recruited into warring factions 14 The mandate of the Bank in this area will be shaped by the recent legal opinion on human rights.

18 11 often view rape as a tactic of war. Legal, religious or cultural restrictions on women s rights, such as the right to own property, or entitlement to education or employment are also essential issues. Table 3: Typical Programmatic Interventions, Human Rights and Transitional Justice Human rights Accountability for past abuses, transitional justice, war crimes and truth and reconciliation commissions Law Women s rights Advocacy, education, legislative reform protecting rights; Support for the creation of watch-dog bodies (e.g., Ombudsman, Human Rights Commission); Monitoring of courts and governments for compliance with human rights; Assistance ratifying appropriate international treaties and incorporating them into national legislation; Reporting human rights violations and working to prevent future abuse; and Capacity-building with local governmental agencies and non-governmental organizations. Infrastructure, advice, capacity training of staff, technical assistance; Provision of personnel for positions where local capacity is lacking; Investigating and verifying past human rights violations; and Assisting relevant judicial and truth and reconciliation processes to foster a culture of accountability and address impunity. Vetting for compliance with IHR standards; and Developing strategy for incorporating different legal systems in one country in a complimentary fashion. Assisting government to understand its obligations under international human rights standards regarding women; Advocacy and capacity building of civil society; and Advice and support to constitution-making or reform on issues of women s rights (including public education, consultation, comparative legal support, drafting assistance). 4. Predictable and Effective Government Bound by Law A core indicator of rule of law is the requirement that in addition to the citizens being bound by law, the rulers are bound by law and government operates in an effective and predictable fashion. In most postconflict environments, however, this is very difficult to achieve. There is usually no remaining professional public bureaucracy and the executive tends to be over-dominant. Key institutions required to check executive power (parliament, the courts, ombudsman, civil society, the media) are weak, under funded or non-existent. The effectiveness of the newly formed parliament is typically undermined by relative lack of parliamentarian experience in democracy, drafting and debating legislation, and holding the executive accountable. The courts that exist or are reinstated are often politicized, corrupt, or the judges have little independence and are subject to a high level of executive intervention. Civil society tends to be very weak in the post-conflict environment, as do the media structures. However, the sorts of changes required to create a professional committed bureaucracy and change the political culture are some of the most difficult and intangible aspects of any transition requiring changes in behavior, expectations and norms. The strategies adopted have typically insufficiently acknowledged that these sorts of societal changes require long timeframe strategies involving large segments of society and extensive education and sensitivity campaigns as well as dialogue and consensus building within society.

19 12 Table 4: Typical Programmatic Interventions, Predictable and Effective Government Bound by Law Constitution-making or constitutional reform Justice reform strategy Public administration Corruption Ministry of Justice, Interior and Defense Military civilian accountability Parliamentary Accountability Judicial independence Exploitation of mineral and oil resources Media reform, freedom of the press Advice and support for constitution-making or reform (including public education, consultation, comparative legal support, drafting assistance). Technical assistance for government to develop a coherent strategic framework and 'vision' to guide future development and reform of the legal sector. Capacity building and support for efficient and transparent administration of public registrations and records (e.g., vehicle registration, building permits, rubbish removal, public health inspection, banking regulations, tax collection). Advocacy, legislative reform, supporting creation of watch-dog bodies; Identification of the necessary institutional and regulatory reforms; the publication of manuals on combating corruption/money laundering etc; and Public financial management and accountability training. Infrastructure support and capacity training of ministry staff, provision of personnel for positions where local capacity is lacking. Security Sector reform, human rights training of military. Parliamentary capacity building and training programs. Promoting the independence of the judiciary and highlighting any improper pressure on judges, prosecutors and courts; Advising on processes for the appointment and selection of judges, judicial tenure and judicial discipline; Assistance identifying law reform on issues of appointment and disciplining of judges and prosecutors and management of financial resources for judiciary. Assistance creating and setting up mechanisms to regulate the exploitation of, and render accountable the use of funds from, oil and mineral resources; Advise on the use of resource trust funds. Legislative reform, advocacy, civil society capacity building. 5. Access to Justice and Equality before the Law The accessibility of the justice system and its treatment of cases in an equal fashion are also considered fundamental to peace and democracy. In the post-conflict environment, where the justice sector may have been completely destroyed, and the population is impoverished, simple matters like traveling to a hearing, or obtaining legal advice or legal books become a major hurdle to accessing justice. In addition, there are very real questions of judicial bias in societies where different ethnic or confessional groups have fought each other. These issues require careful consideration of what infrastructure and modernization reforms will be sustainable, keeping in mind alternatives to the formal, high cost processes, especially outside of the cities. They also require strategies to overcome bias and perception of bias in the judicial body and the police.

20 13 Table 5: Typical Programmatic Interventions, Access to Justice and Equality before the Law Court administration and registration offices reform Access to justice Judicial bias Monitoring the judicial process, including observing trials; Court administration capacity building; Infrastructure support, systems modernization; Strengthen court administration and case management; Provision of personnel for positions where local capacity is lacking; and Collect, analyze and disseminate criminal justice data. Support for mobile courts, or paralegal services; Creation of legal aid offices, financial support; Support for alternative dispute resolution, decentralization; and Distribution of legal information. Use of international judges or introduction of balanced ethnic/confessional benches; and Vetting and appointment and training of judges, especially in IHR. III. EVALUATIONS 15 There is a striking lack of coherent and systematic studies evaluating rule of law programming. In Carother s words: Aid organizations have proven themselves to be ill-adept at the task of generating and accumulating the sort of knowledge that would help fill the gap. They profess great interest in lessons learned but tend not to devote many resources to serious reflection and research on their own efforts [Moreover], if aid organizations are themselves not sponsoring the kind of applied policy research that would build knowledge in the rule-of-law promotion domain, neither are political science departments or law schools. (Carothers 2003, p. 13) Thus, as DFID points out Many initiatives in the justice sector have not been subject to careful monitoring and evaluation (DFID 2002, p. 42). There are a range of reasons for this, one of which being that rule of law is an area of great complexity, conceptually and practically, and any studies face difficult causality issues. Nonetheless, the degree to which such evaluations are lacking is surprising. As Frank Upman comments: Given the attention and money now directed to legal-reform efforts, one would assume that there is a carefully elaborated model of law and development based on empirical evidence from the developmental periods of Western economies, what has worked and not worked in the developing world over the last fifty years, and the experience of the previous period of law and development in the 1960s. If such a model exists, however, I have not found it. (Upham 2002, p. 8) This lack of empirical and comparative experience undermines the ability to develop strategies and programs that take account of potential strengths, weaknesses and unintended consequences of previous experiences. The majority of evaluations that are publicly available are those commissioned by USAID on their various programs. 16 The studies and reports evaluating rule of law programs tend to fall into two categories: self-reporting exercises, often in the form of an interim or final project report, and commissioned or independent program or country rule of law evaluations. The self-evaluations are typically descriptive of the program and context but are not particularly helpful in determining the effectiveness, rationale, and program 15 See examples of evaluation studies listed in the bibliography. 16 See - USAID's Development Experience Clearinghouse (DEC).